Abdullah Mahar (Appellant) VS The state (Respondent)

[tto*' tz( Gr €e-r\ ha-q- + cLaq-t

IN THE HIGH COURT OF STND H, CIRCUIT CO URT LARKANA

Criminal Jail Appeal No.D- 32 of 2076.

Criminal Jail Appeal No.D- 33 of 2016.

A Criminal ]ail Appeal No.D- 37 of 201.6.

ConJ, Case No.D- 07 of 201,6.

Present:

Mr.]ustice Mbhammad Karim Khan Agha,J' Mr. |ustice Zulfiqar Ali Sangi -I

Appellants: Sanaullah and Niaz Ali through Mr.Athar Abbas Solangi, Advocate in Cr. Jail Appeals No.D-32 201,6.

Appellant: Abdullah through Mr. Asif Ali Abdul Razak Soomro, Advocate in Cr. Jail Appeal No.D-33 of

Appellant: Muhammad Siddique through Mr.Inayatullah G. Morio, Advocate in Cr. Jail Appeal No.D-37 of 201.6.

Respondent: The State through Mr. Ali Anwar Kandhro, Addl. P.G.

Date of hearing: 21,.01,.24n,.

Date of judgment: 02.02.2021,

TUDGMENT

Muhammad Karim Khan Aeha -I:- By this common judgment, we intend to dispose of these three Criminal Jail Appeals filed by appellants Sanaullah, Niaz Ali, Abdullah and Muhammad Siddique resPectively who have assailed impugned judgment dated 30.5.2016 passed by learned Judge, Anti terrorism court, Shikarpur in Special Case No.19 of 2014 re: I State v. Sanaullah and others arising out of Crime No.21" of 2A1.4 of Police Station Chak District Shikarpur registered for offence under Sections 302, 31't.,201.,149 PPC, whereby the appellant Abdullah has been convicted for offence under Section 302 (b) PPC r /w Section 7 (iXu) ATA 1997 and sentenced to death subject to confirmation by this court and to pay fine of Rs.2 Lacs, in case of default in payment thereof, he shall suffer further R.I

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Niaz AIi and Mohammad - for six months, appellants Abdullah, Sanaullah' under Section 201' PPC and Siddique are also convicted for offence years and pay fine of Rs' One Lac each' in sentenced to suffer R.I for seven case of defaurt in payment of fine they shall further suffer R.I for six months.

FIR No 1,4/2014 aS

2.Initially the Prosecution CaSe as Per original was as under;

lodged by Abdullah (now appellant) ''Complaintisthatlamresidingatalgveaddressedplace'I have two daughters namely Msu shah Nawaz aged about L3 years. Yesterday in the years and Msrf R*"*u ug*i about L2 the house of my morning time these hal gone to visit to Mahar, but did not relative sannaullah s/o saifal by caste Mohammad Malook return until evening, then I, my trother saifal went and cousin Khalil Ahmed i/" Mohammad Mahar and sanaullah together to the house of our cousin enquiredfromhimaboutmydaughtersnamelyMst. to visit you have come shahnawaz and Mst: Reema who had yet. Accused sannaullah Mahar not returned back to home as have killed youl both stated that due to domesti c'af.fair I daughtersatnoonbymakingfiringwithgunandhave *u1t'-thereafter you concealed the dead bodies, do wfratever Rehmatullah t- we 1eft his house and went to our Nekmard but he was the facts Mahar in his ,ittug* Kamil for narrating us/ we narrated him the not available at his home, nov,/ he met the FIR. Now I am here facts, he advised us together to lodge s/ o saifal Mahar at P.S, alleging that that accused sannaullah murder of my two d.ue to domerti. affairs has cornmitted Mst'Reema by making daughte,, .u**ly Mst.Shahnawaz and' shootinggunandconcealedtheirdeadbodies.Iam complainur'tt *oY justice be done'" 3.Duringinvestigationofabovecasesitfranspiredthatcomplainant had lodged the above false FIR Abdullah now accused. in present case which was dePosed of in "c" class' that Mst Shahnawaz

4.Later after further investigation it transpirect Mahar and deceased Mst Reema @ I was ctaugnter of complainant Abdurlah Hayatan r^ras daughter of accused Sanaullah and both the deceased were murdered by Abdurlah (comprainant of crime No 14/201,4) sanaullah' of karap with Abdul shakoor Khalil Ahmed and. Niaz on the allegation with their common obiect and ]agirani and Ali Muhammad Jagirani buriat at the aban.doned land of one concealed the dead bodies by irlegar colusion with accused ASI Muhammad Rehmtu[ah and Amanu[ah and in v

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of that crime No' 14/ ?01'4who being I'O siddique lodged false FIR bearing empties and blood stained earth from the case showed fake recovery of from spot in order to disappear the evidence to screen the accused of accused Abdullah the dead -t punishment. Later ofl, on the pointation the permission were d.iscovered and exhumed with bodies of both deceased.

in supervision of concerned Magistrate of learned sessions Judge shikarpur of and postmortem was conducted by Medical Board to ascertain the cause the inquiry officer Inspector Abdul death. After completing investigation No.Inquiry ce\/aL/ ?01'4 dated 07 '4'201'4 Qudoos Kalwar vide letter with request that FIR of murder of submitted his report to ssp shikarpur above named accused through sHo P's both radies be registered against the complainant sIP Rafique Chak, on the directions of ssP shikarPur sHo p.s chak lodged the present FIR 2u1'4 against the Ahmed eureshi, which is set out below and became FIR accused on the basis of such report ""No: EnquirY Cell / 42/ 20L4 Dated 07 /04/201'4 -t To,

The SuPerintendent of Police ShikarPur' No.1'4/201'4, ry's 302, 20./-', PPC of Subiect: Investigation -oI.9",* FIR PS Chak & Case F|p-2+/2014, u/s 419,384, 117,1,43,34, PC of PS Lakhi Ghulam Shah' the order af Honourable Supreme court It is submitted that in pursuance of cilses,ruas transferred of pakistan insuc io.T/2a14, inaestigation'of aboue Xamran Nawaz Paniutha' of Mi' to the undersigned in the supentisioi No,s9t-60J/AtG/oPs-L1L/2014' Asp/sDpo city shikarpur uide order The undersigned receiaed cnse dated 21,',014 of IGP Sindi Karachi' of cnse papers it was From the perusat pnpers on ZZ,e.ZOil and puus;ed. euaul'lah son of Ghulam Hussain @ reuealed that an 3.s.201,4, **riii"ont o ,o:r,FIR No' 1,4/2"01'4 uls 302' Gul Mohammad Mahar got rrii.r,ered Saifal Mahar for I ppc against accused ionor.inn son of Mohammad Mst' bhohno'uaz and Mst' Reema' committing murder of his daughter During inuestigntion t!rc ultdersigned aerified f'o* t\' superaisorcf Mst' klron and'foun'd that the.deceased Education Department beat rtaia* Mst' Sanaullah son oi t'l'f"*Y!-foifal and Shahnau,sT urns dattghter of Reema @ Hayatnn Tpns d-;;;";;, .i7 **piainant Abdullah Mahar' on son of 22.3.201,4 the undersignrd i oirrsted nominated accused Sanaullah the court of poli.ce custody remand fr1* Mohammad saifal Mahar and got son of Mohammad Saifal Mahar, law, The orrritrd accused Sinautlah

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after committing murder of both ladies during interrogation discrosed that Hayatan, iad thrown them in the Mst, Shahnatuaz aytd Mst. Reema oiio, Khirthar Canal, r.

complainant Abdullah Mahar' Thereafter the undersigned enquired from Khalil I who discrosed that he along tuiti sanaulrah son iy tvtorryyryod saifal, Ali'son of Rehmntullah' all by Ahmed son of Mohammol Soiiot amd \1az Mst' of deceased Mst' Shahnauraz and caste Mahar, had committed irrdff Reema @ Hayatan by stranguration ind then conceared the corpses of both on radies in the to"o-i'ofkehmaiuilah Mahar nenr Lakho Pir, Deh Fatehpur' s.t'tch report utas submitted to the their confession of commiss*n oT rXrice, District A Sessions ludge, Slriiirp"' in order to *et permission for excaaation of graues'

Thereafter, as per directions of District I sessions ludge' shikarpur the Ghuram shah sent report to the Director concerned ciair- luigeflM Lat<hi of General, Heatth' Sririirrr, Gooi, i7 Sirafr, Hyderabad fo.r constitution exciaation of of both Medical Board including a w.M.b,, 7r, -the.g.rnaes the cnLrse d'!!ry fy:h i.nterim report deceased ladies in order to ascertain 'f Ciail Judgi €r IM'Laklti Ghulam Shah' uas also submitted to the ,onrrrnrtd. iuauialr 2) Niaz Ari (Mashir), in which the names of accurra ,'r*plomoit (pwl Tuere also included' and 3) Khalit Ahmed'son of saifat murdercf ttoo ladies The aboue accused persans had committed on the allegation of honour @ Hayatnn Mst.Shahnau,i, ond Mst' Reemn Ati Mohammad lagirani and they kitting with aiaut Shakoor 1og*ni y ih:nrr|o", it is recomnrcnded that SHo

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had made terror in the tacaliry: State Chak mily kindly be directed to regiiter !."!o'oty ca,y .o: 'f ^b'holf -- against aboae ariused u/s 302' 20;3'l'1' 34' PPC €r 6/7 ATA' sIP Ahmed Ali Khuhawar Furthermore, on 18.3. 201"4 complainan! case FIR No'24/2014 u/s SHo pS Lakhi Ghulam ShJ r"girt""l.u ppc at PS [akhi Ghulam Shah against accused 384, 41g,117,143,34, 22.3.2014 the undersigt'"{ flt:t}"d Ghous Bux Mahar and others. on of Mohammad saifal Mahar two nominated accused sanaullah son and @ Gul Mohammad Mahar and Abdullah son of Ghulam Hussain on got remand. from the court of law' whereas other all accused are been submitted in the Court of Court bail. such interim report has law on 5.4.201.4."

were sent up

5.on conclusion of the investigation, accused/appetlants co-accused Muhammad Fazil was to stand triar. subsequently absconding challan while co-accused arrested and sent up und.er supplementary Muhammad Malook joined the trial after getting bail- Charge was framed t trial' alt pleaded' not guilty a,d claimed against accused to which they examined 11 Prosecution witnesses 6. To prove its case the prosecution the side and other items and thereafter and exhibited numerous documents were recorded The statements of the accused of the prosecution was crosed. 342Cr.pc wherein they denied all the arlegations against them and tt /s t {

under of the accused examined themselves craimed false imprication. None oathorcalledanyDWinsupportoftheirdefencecase.

and learned counsel for the parties 7, Learned trial court after hearing the on record' convicted and sentenced appraisal of evidence brought Khalil above while acquitting co-accused apperlants/ accused as mentioned benefit of Muhammad Fazir and Mohammad Marook based. on Ahmed, , dated 30.05.2016. Hence the appellants doubt vide impugned judgment their convictions' have filed these appeals against

trial evidence Produced before the g. The facts of the case as well as passed by elaborate mention i* the judgment clated 30'05'201'6 court find an to therefore, the sarne may not be reproduced here so as the trial court and, repetition' avoid duplication and unnecessary

g.Learnedcounselfortheappellantshavecontendedthattheyare been falsely implicated in this case; that there compretery innocent and have murders; that there was no last seen evidence;

was no eye witness to the and that .* of the accused made any confession before a magistrate that none and in any before the porice was inadmissible in evidence any admission been acquitted event had been retracted at trial; that other co-accused had had been such they were entitled to equal treatmenu that no motive and as is that only evidence agai*st appellants Abdullah and Niaz proved; that the ladies were to the prace where the murdered they alregedry took the porice exhumation and that and identified the murdered, ladies after their buried who produced the spade which was used to bury the ladies Niaz allegedly no had aregedly murdered by stranguration; that Niaz made the accused at trial; that with confession and no such confession was exhibited recorded him under to appellant lvluhammed siddique the charge against regard any was defective as he had not been put on notice tfuough s.201 PPC charged with this offence and in fact the I particurars why he had heen appenants including hirn had been charged charge revealed that all the was no ppc for which specifics had been given but there under s.302 this effect; that this was purely a case of evidence against him to to P,'ove and thus evidence which the prosecution had failed circumstantial of the above reasons all the appellants shourd be acquitted for any of the

chargesbyextendingtothemthebenefitofthedouu*,V

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10.On the other hand learned Addl. Prosecutor General has fully supported the impugned judgment based on circumstantial evidence i* against each of the appellants and contended that since the prosecution had proved its case beyond a reasonable doubt against each and every appellant all the appeals should be dismissed and the sentences and convictions maintained. He did however submit that based on the particular facts and circumstances of the case the death sentence awarded to appellant Abdullah merited reduction to that of life imprisonment.

11.We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, the impugned fudgment with their able assistance and have considered the relevant law.

12.At the outset we would like to note that the murder of the two women by sfrangulation allegedly on account of Karo Kari and then secretly burying them so that the deed may not be uncovered is no doubt a barbarous crime which needs to be dealt with by an iron hand and with the full force of the law in order to deter such heinous practices however, as ]udges we have to put such aspects aside and decide the guilt or innocence of the appellants by dispassionately assessing the evidence before us and coming to a decision which is supported by the evidence on record and the governing law and not by our emotions or own personal feelings. We can only be guided by the evidence and the law and nothing else. In this respect we refer to the case of Azeem Khan V Mujahid Khan (2016 SCMR 274) which held at P.290 Para 32 as under;

"similarly, mere heinous or gruesorne nature of crime shall not detract the Court of laro in any manner from the due course to judge and make the appraisal of eutdence in a laid dorun nlanner and to extend the benefit of reasonahle doubt to an accused person being indefeasible and inalienable right of an acaned, In getting I influence from the nature of the crime and othw extraneous consideration might lead the ludges to a patently wrong conclusion. ln that eaent the justice would be casualty".(bold added)

13.Based on our reassessment of the evidence and in particular the PW MLO, post mortem report/report of medical Board, PW Judicial magistrate,

7 t3L and the police PW's we find that the prosecution has proved beyond a

reasonable cloubt that Mst shahnawaz claughter of Abdullah Mahar and r and Mst Reerna @ Hayatan (the deceased) were murdered by strangulation t buried in a grave in isolated uncultivated land near village Kamil' 1,4. Before proceeding further it would be of assistance to set out the in charge dated 1g.04.2015 which some of the appellants claim is defective respect to the offence under 5.201 PPC which reads as under;

IN THE CURT OF JUDGE ANTI-TERRORIM SHIKARPUR

SPecial Case No'19 of 201'4

State . .. "Vs Sanaullah & others Off U/Ss 302, 11.4,34 PPC, 6/7 ATA Crime No.21/ 201.4,I1S Chakk District ShikarPur

CHA R GE

I, Fida Hussain, ]ude Anti-Terrorism Court shikarpur, do hereby charge You:

L. Sanaullah son of Muhammad Saifal'

2.Abdullah son of Ghulam Hussain'

3.Niaz Ali son of Rehmatulah'

4.Muhammad Fazil son of Ghulam Hussain'

5.Khalil Ahmed son of Saifal'

6.Muhammad Malook son of Ghulam Hussain, all by caste Mahar.

7.Muhammad Siddique son of Mithoo Shar'

As follows :

That on 02,03,2014 at about 01.00 pm (noon) in the house af accused sanaullah situated at aillage Qasim Mahar Deh Qasim you all accused in furthernnce of your ,r*lnon obiect committed murder of M;t' of Abdullah shahnawaz daughter of"sinaullah and tvtit. Reema daughter and thrown their by strangulatinfr them'on the aLlegation of honour killing sense of insecurity has bodies in the Rhirthar canal and bi your iuch act the an been created in the pubtic at targe, thus thereby_vry ryoo?.committed 6f, Anti- / ,yrrg punishable under section 5oz, zot, 34 PPC r/w Section of ferrorism Act L997, Tttithin the cognizance of this Court' i"d I hereby direit that you be tried by this Court on the aboae said charge'ted.

lgft day of April, 2015-

( FIDA HUSSAIN )

Judge Anti-Terrorism Court Shikar o"i

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15.The accused have been charged with murder under 5.302 PPC, { corrunon intention under S.34 PPC and under S.20L PPC which is set out below for ease of reference;

" 201.. Causing disappearutnce ,f eaidence of ffince, or giaing false information to screen ffinder; Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false."

1,6. With regard to the Charge the following sections of the Cr.PC are relevant which we set out as under for ease of reference;

"227. Charge to state offence. (1) Every charge under this Code shall state the offence with which the accused is charged.

(2)Specific name of offence; sufficient description. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name on1y.

(3)How stated where offence has no specific name. If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. + (a) The law and section of the law against which the offence is said to have been committed sha1l be mentioned in the charge.

(5)What implied in charge. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

222, Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2)When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items of exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section1S(; t Provided that the time included between the first and last of such dates shall not exceed one year.

?23, When manner of committing offence must be stated. When the nature of the case is such that the particulars mentioned in section 221, and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purPose.

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224.Words in charge taken in sense of law under which { offence is punishable. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is i punishable.

225.Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

232.Effect of material error. (1) If any Appellate Court or the High Court, or the [Court of Session] in the exercise of its powers of revision or under Chapter XVII, is of opinion that any Person convicted of an offence was misled in his defence by the absence of a charge by any error in the charge, it shall direct a new trial to be held upon a charge framed in urhatever manner it thinks fit.

(2)If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

233.Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except, except in the cases mentioned in sections 234,235,236 and 239.

17.It is well settled by now that the object and purpose of the Charge is to inform the accused of the case against him in the manner provided in the aforesaid sections related to Charge so that the accused know precisely what they are being accused of and what time and place the offence occurred so before the trial they are able to properly and adequately prepare a defence against the charge. In this respect reliance is placed on S.A.K Rehmani V State (2005SCMR 364) where it was held as under at

P.381;

"lt is to be noted that "the whole obiect of framing a chatge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a aague tnanner that the necessary ingredients of the offences r, with which the accused is conaicted is not brought out in the charge, then the charge is defectiae, Makhan a. Emperor AIR L945 Alt. 81., ln other words it can be said that "the main object of framing oI charge is to ensute that the accused had sufficient notice of the nature of accusation with which he *ios charged and secondly to make the Court concerned conscious regarding the real points in issue so that eaidence could be confined to such points." (hold added), h

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18.l.ikewise in the case of Mubeen V State (2006 YLR) it was held by u Division Bench of this court at P.360 at Para's 5 and 6 as under;

-Jr " 5.In fnct a charge is precise formulation of the specific accusation made against a person who is entitled to knottr its nature at the e.arly stage. The ruhole object of ftaming a charge is to enable the defence to concentrate its attention on the case that he has to meet. Therefore, the charge must contnin all material particulars as to time, place as well as specific nttme of the alleged offince, the matter in ruhich the offence ams cotnmitted and the particulars of the accusation so ils to ffirrl the accused an opportunity to explain the matter ruith ruhich he is chnrged, Purpose behind giaing such particulars is that the accused should prepare his case accordirrgly and may not be misled in preparing his defence. It needs no emphasis to state that a defectiue and misleading charge causes serious prejudice to the accused and aitiates the whole trial. (bold added)

6.After examining the charge framed by the trial Court u)e are persuaded to flgree with the submissions made before us. The charge has not been cortectly ftamed. It is misleading besides lacking in material particulars. It has certainly aitiated the trial and has resulted in miscarriage of justice. Additionally the impugned judgment is manifestly untenable, for haaing been recorded in aiolation of the proaisions af section 367, Cr,P.C." (bold added)

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19.In the case of Dur Muhammed V State (1994 MLD 1493) a Division Bench of the Lahore high court also held as under in respect of a defective charge atP;1,494 Para 4 "4. We haae lrcard the learned counsel for the parties and haae perused the record. The charge framed against the appellants by the trial Court does not contain the necessary ingredients as laid dorun under the laut. When the charge does not giae full notice to the accused of the allegations/chargeil then it uitiates the whole trial."

20.There are a plethora of judgments on the fact that the charge must be framed with precession and certainty so that the accused know before the trial v,hat they have to actually defend themselves against failing which the charge will be defective including ]aseem and 2 others v. The State ,t (2008 Y L R 717), Dilsher v. The State (PLD 2012 Sindh 307) and Muhammad Hayat v. Sabir Sultan, Additional Sessions Judge and others (2004 P Cr. LJ 397).

21.. We find that after a careful reading of the charge that none of the accused have been put on notice that they have to defend themsel"*t1

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against the offence found in 5.201 PPC of Causing disappearwtce of eaidence of offence, or giaing false information to screen offender in terms o/ whoever, knowing or having reason to believe that an offence has been committed., -I causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. This is because no where at alI in the charge has such language been used as to give any clue to any of the accused that they have to defend themselves in respect of this offence and as disclosed in the evidence they have not done so since clearly being lay men they had no idea what 5.20L PPC meant especially as it is not in any language alluded to in the Charge and as such we find that the charge is clearly defective in respect of an offence under 5.201 PPC as none of the accused had notice to defend themselves against such charge and did not do so and were clearly prejudiced by this defective charge which lead to a miscarriage of justice for them being convicted in respect of this offence. The charge even suggests that the body was thrown in a canal and not buried under ground and when the charge is read as a whole the impression is given that the -5 accused are only be tried for murder and not under 5.201 PPC. In our view the charge in order to give sufficient notice to the appellants as to what they had to defend themselves against ought to have been divided into two separate paragraphs.The first dealing with the murder under 5.302 /34PPC and the second dealing with the offence under 5.201 PPC. Namely how the appellants had caused disappearance of evidence of offence, or giving false information to screen offender. It may have even been preferable to charge the appellants by fwo separate and distinct charges pursuant to section 233 Cr.PC under 5302/34 PPC and 5.201 PPC respectively to ensure that the appellants understood what they had to defend themselves against especially as 5.201 seems more applicable to only appellant Mohammed Siddique and not the other appellants.

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22.We do not consider at this stage that it would meet the ends of justice to remand the case back to the trial court for a de novo retrial under 5.232 Cr.PC under a properly framed charge for an offense under 5.201 PPC against the appellants especially as the case is over 7 years old and the appellants were only sentenced to serve 7 years in jail in respect of this offence and although all of the appellants are out on bail except Abdullah

1Z t3"l who was the only accused convicted of murder as well as under S.20L the { rest of the appellants have already spent a number of years in jail in respect of that offence and suffered the anxiety and misery of awaiting their appeal + to be heard and as such we acquit all the appellants of the offense under 5.201 PPC on the basis of a defective charge which occasioned a failure of justice/miscarriage of justice and evn quash the charge is so far as it relates to the offence under 5.201 PPC.

23.Even otherwise not with standing the defective charge in respect of 5.201 PPC we find that after our reassessment of the evidence on record the offence under 5.201 PPC has not been proved beyond a reasonable doubt by the prosecution against any of the appellants convicted of this offence and thus all appellants convicted of this offence also stand acquitted on this account based on being extended that benefit of the doubt.

24.With regard to the other aspects of the charge we are satisfied that all the appellants have been legally charged with the offence of murder of the two deceased women and that they had full notice of the offences under 5.302 and 34 PPC as mandated by the law as to which they had to defend

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themselves.

25.All of the appellants except Abdullah were acquitted of the offence of murder at trial and the State filed no appeal against their acquittal and as such we only need to consider whether the prosecution has proved its case beyond a reasonable doubt against appellant Abdullah for the murder of both the deceased.

26.After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charges against appellant Abdullah under 5.302 PPC for the murder of the deceased for the following reasons;

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(u)Admittedly there was no eye witness to the murders.

(b)Admittedly there is no last seen evidence.

(.) No recovery was made from appellant Abdullah in terms of any rope used to strangle the deceased'.r_

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(d)The motive that the murder was based on Karo kari was not Proved by any evidence at trial, The trial court judge reliecl upon evidence of a jirga which settled this issue and was published in the newtpup*rr and the fact that the Supreme Court took Suo Moto notice of the matter. No evidence was -lt produced at trial that any such jirga took place. For example, no member of the jirga or anyone present at the jirga was produced as a PW, no newspaper clipping in this respect was exhibited and no TV footage to this effect was ever exhibited. Instead the learned judge instead of relying on any evidence adduced at trial blindly believed the hearsay evidence of the IO PW I Abdul Quddoos without any corroboration who simply stated in his evidence, "that he came to know that the deceased were murdered on the allegation of karp" and thus the prosecution was not able through evidence to prove the very foundation of its case. Namely the motive for killing the deceased was on account of Karo Kari. Thus, the appellant had no motive to commit the murders.

(e)That any admission made by the appellant before the police is inadmissible in evidence and the appellant did not make any confession before a judicial magistrate. That the trial judge considered a magistrates remarks on a 5.173 report that the appellant Abdullah had admitted lodging a false FIR despite this document not being exhibited at trial and a 5.173 report being of no evidentiary value being in admissible in evidence. In this respect reliance is placed on Province of Punjab v

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-+ Muhammed Rafique (PLD 2018 SC 178). Even otherwise the complainant does not admit before the magistrate that he killed the deceased. This piece of evidence was clearly inadmissible and even otherwise does not implicate the appellant in the murder of the deceased.

(0 That there was no evidence as to where the deceased were murdered as alleged in the Charge. There was no evidence as to the date and time when the deceased were murdered as per charge,

(g)Based on the same evidence apart from pointation of the grave the other appellants were acquitted of the charge of murder and as such the appellant Abdullah is entitted to the same treatment especially as in the charge all the appellants were charged with murder yet all the other appellants were acquitted despite their heing no direct or circumstantial evidence that appeilant Abdullah committed the murder of the deceased. In this respect reliance is placed on Notice to Police Constable Khizer (PLD 2019 SC 517) and Altaf Hussain V State (2019 SCMR 274), Notably no appeal against acquittal was filed by the State against the co-accused who were acquitted of all charges and no appeal against acquittal was filed by the State against the appellants who were acquitted of murder under 5.302 PPC and only convicted under 5.201 PPC despite the evidence of murder under 5.302, k'

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PPC being the same against them as for appellant Abdullah who was the only appellant convicted of murder.

(h)As found in the impugned judgment the case against appellant Abdullah is based purely on circumstantial evidence which is an assessrnent which we agree with. With regard to circumstantial evidence leading to a conviction in a capital case it was held as under in Fayyaz Ahmed V State (2077 SCMR 2026) at P.2030 para's 5 and 6 which are reproduced as under;

"To belieue or rely on circumstantial eaidence, the well settled and deeply entrenched principle is, that it is intperatiue for the Prosecution to prooide all links in chain flfl unbroken onq where ofie end of the same touches the dead body and the other the neck of the accused. The present case is af such a nature uthere mfrny links are missing in the chain.

To carry conaiction on a capital charge it is essentinl that courts haue to deeply scrutinize the circumstantial eaidence because fabricating of such eaidence is not uncommon as u)e haue noticed in some cflses thus, aery minute and nflrrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting ott circumstantial eaidence. "Refisonable Doubt" does not menn any doubt but it must be accompnnied by such refisons, I sfficient to persuade a judicial mind for placing reliance on it, If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows, To draw an inference of guilt from such eaidence, the Court has to npply its judicial mind with deep thought and with extra cflre and caution and wheneuer there are one or so?ne indicatiofisr showing the design of the Prosecution of manufacturing and preparflt'ion ,f a casq the Courts haae to show reluctance to belieae it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otheruise at random reliance on such euidence would result in failure ,f justice.

It may also be kept in mind that sontetimes tlw inaestigating Egency collects circumstantial euidence seems apparently belieuable horueaer, if the strict standards cf scrutiny are

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applied there utould nppear rufrny cracks and doubts in the same which are always inherent therein and in that cflse Caurts haae to discard and disbelieue the sflttte." (bald adrled)

In the case of Azeem Khan V Mujahid Khan (2016 SCMR 274) the following was reiterated with respect to circumstantial evidence atP.290 as under;

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g ,,lncfrsesofcitcumstantialeaidence,theCourtsareto take extraordinary care and caution befoy relying on the same. Circumstantial euidence| e\)en if supporte,d by be made basis for + defectiue or inadequate eaidence, cannat when there conaiction on a cnpital charge. More particularly, of a case or are indications of design in the preparation introducing[mypieceoffabricatedeaidence,theCourt should at*-io* i, ki"ayul' ti tqke extraordinary precautions' misled into.false so that *r, irrribitity iy it uring deliber,ately is to be ruled out, inference oiia pot nity rurong1onc.lusion be applied for carefully therefore hnrd' and fa"st rulei should andnarrotuly,*o*iningcircumstantialeaidenceinsuch nre ahuays suclt euidence cflses Urrou-.ri ,hances of iabricating there. ii i"ttlfy thi'infe"n'i ?[ gritt of an -accused person, the ciicumstoitiot eai,ence must be "f n qualitytobeincompatiblewiththeinnoceflceofthe not of that is accused. lf such circumstantial eaidence to stanilard ind quolity, it would be highly -dangytous punishment.

rely upin the'same by awariling.capital and safe The bette:r wouli be not to rely upon it "rlrw in securing the ends of iustice'" Theonlypieceofadmissibleevidenceagainstappellant lead the police to the Abdullah in the instant case is that he deceased were exhumed grave from where the bodies of the by the evidence which he denied at trial and was supported

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ofPwgHCMohammedYaqoob-.whoulasoneofthe appellant Abdullah mashirs on pointation of the grurr* by and states in who was declared hostile Uy ltre prosecution his evidence as under;

"ExaminationinchieftoMr'MohammadAnwar DD f, the sta

Idonotknowanythingaboutthisincidentbutmy at PS on mashir signatute was obiainea Uy munshi my signature' ,ru"*u Ex.S/A. I see Ex'S/A, it bears AtthisstagelearnedDDPdeclaresthewitnesshostile the witness' and seeks permission to cross examine on 1S gr

IknowlnspectorAbdulQuddoosKalwar'Itiscorrect that Inspector Abclul euddoos was investigating { officerofcrimeltlo.l4l201'4ofPSChakk.Idonotknorn, accused Abclullah and Sanaullah' I do not know whetherabovebothaccusedwelearrestedincrime No.14/ 2014. It is incorrect that Inspector Ahdul above both accused in my Quddoos interrogated of SIP Abdul ]abbar presence as well as Presence Shar on 29.3 .20'!'4' I never went with I'O and SIP pointation of Abdul ]abbai to Kamil village onpointed out the accused. It is incorrect that accused placewheretheyburieddeadbodiesinmyPresence. Ex,SlAn it i, incorrect that contents of mashir nama

{r 16 tqt t ----- were read over to me by I.o and obtained my signature on it at the spot, voruntary says that my { signature was obtained at ps. It is incorrect that due to influence and pressure of accused I am deposing falsely. voluntary says that I have given true staiement t. on oath."(bold added)

such evidence of PW 9 HC Mohammed yaqoob in our view creates doubt as to whether appelrant Abdullah did in fact lead them to the graves of the deceased.

Even otherwise, in our view there is insufficient evidence to prove beyond a reasonable doubt based on the law of circumstantial evidence as cited above that appellant Abdullah murdered the deceased. For example, he ;",y have heard about the burial site from another source even if he was there which is doubtful.

(i)Based on the particular fact and circumstances of this case where according to the prosecution case the deceased were killed and buried secretly away from public view and without any public knowledge we do not see how the ATA is applicable as there was no design, object or intent to terrorize or make the public insecure and as such the appellant Abdullah is acquitted of any offence under the ATA *hi.h hu has been convicted of.

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(,) It is a golden principle of criminal jurisprudence that the prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession. In this respect reliance is placed on the case of Tariq Pervez Y/s. The State liOlS SCMR 1345), r,t'herein the Suprerne Court has observed as follows:- "It is settled laut that it is not necessnry that there should be many circumstances creating doubts. lf tlrcre is a single circumstanci, uthich creates reasonable doubt in a prudent mind about the guilt of the accused, then tlrc accused will be entitled to the benefit iot as a matter of grace and concession but as a matter of right."

27.Thus, based on our above discussion and our reappraisal of the evidence and keeping in view the above guidelines on circumstantial ,( evidence we find that the prosecution has failecl to prove beyond a reasonable doubt that appellant Abdullah committed the murder of the deceased and as such he is acquitted from the charge by beirrg extended the benefit of the doubt and shall be released from jail unless wanted. in any other custody case.

{. l7 tbz 28' As such all appeals are allowed and all the accused stand acquitted of all the charges against them for the reasons mentioned above in this judgment and the impugned judgment is set aside. The appellants on bail -* bail bonds stand discharged and the corrfirmation case is answered in the negative. Accordingly the confirmation reference is answered in Negative.

29.The appeals stand disposed of in the above terms.

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